Public Notice - Public Highway Declaration
Roads, laneways and carriageway easements within the area bounded by Albert Street, Sydney Road, Victoria Street and the Upfield Railway line.
Call for submissions
Moreland City Council (Council) acting under Section 204(1) of the Local Government Act 1989 (Act), proposes to formally declare to be public highways:
- All Roads (including laneways) within the area bounded by the southern boundary of Albert Street, the western boundary of Sydney Road, the northern boundary of Victoria Street and the Upfield railway land, in Brunswick;
- The carriageway easement Council constructed within or abutting 2-12 Wilkinson Street, Brunswick;
- The carriageway easement Council constructed behind the rear of 397-401 Sydney Road, Brunswick; and
- The road (laneway) pavements Council constructed across and within the land at 409-419 Sydney Road, Brunswick for the provision of a night-soil collection service.
The term public highway incorrectly evokes thoughts of Hume Highway or Princes Highway. However, that is not correct. The term public highway dates from old English law and is generally defined as:
Public Highway – land over which the public has a right to pass.
This includes streets and laneways and can include narrow pedestrian paths between two properties.
This formal declaration only applies to land and/or roads that are already public highways under Common Law. The declaration is intended to remove confusion about public’s right of access.
The proposal may affect you. Therefore, Council is calling for submissions (under Section 223 of the Local Government Act 1989) on the proposal to formally declare locations that are public highways under Common Law. Please send your written submission to Council’s Team Leader Development Engineering, Mr Craig Pierce, Locked Bag 10, Merri-bek 3058, or email email@example.com.
Plan of Area
Showing existing Public Highways (under Common Law) to be formally declared as Public Highways to clarify the public’s rights of access.
The first category in the above plan (coloured light blue) are all the roads shown on title in this area, including the unnamed roads (colloquially called laneways). They became public highways under Common Law when Council constructed them, and the public used them. The second category in the above plan (coloured orange / red) are carriageway easements that became public highways under common law when Council constructed them, and the public used them.
However, with the ever-evolving nature of Common Law, Council has determined it is pertinent to formally declare the public highway status to remove confusion.
The third category in the above plan (coloured purple) were created differently. When Brunswick was first settled, human excrement was tossed into the gutters. In the late 1800s, Brunswick, like other Councils, created a night-soil collection service. This required the residents to place their toilets against the rear laneway using the ‘pail closet’ system. The “nightman” standing in the laneway would reach through a small door in the back of the toilet and swap the pan for an empty one. The night-soil was carted away and used as fertiliser.
Those properties without a rear laneway were refused this service until they permitted a road (laneway) to be constructed, to Council’s standards, across their land and the toilet placed at the back fence. The road (laneway) that exists physically across the rear of 409-419 Sydney Road was created through this process. The laneway became a public highway through the Common Law principle of ‘dedication and acceptance’. That is, the Owner agreed to set their fence back to allow a road to be constructed (dedication) and the Council constructed the road (acceptance).
Later, the Melbourne and Metropolitan Board of Works (MMBW) constructed an underground sewer main under the laneway to be located next to the toilets. When Council made Wilkinson Street and Henry Street one-way prior to the 1980s, this laneway was also made one-way, from Wilkinson Street north to Victoria Street. This laneway is included in the declaration to formalise its public highway status.
The declaration of these locations is to formalise the existing public highway status (under Common Law), to remove confusion and guarantee the public’s right to use them.
The proposal may affect you. Therefore, Council is calling for submissions (under Section 223 of the Local Government Act 1989) by 4 June 2021 on the proposal to formally declare as public highways, the locations that have previously been accepted as public highways under Common Law. Please send your written submission to Council’s Team Leader Development Engineering, Mr Craig Pierce, Locked Bag 10, Merri-bek 3058, or email firstname.lastname@example.org.